March 27, 2012

1. Justice Alito asks Solicitor General Verrilli if he could state "as succinctly as possible" a "limiting principle" on the Commerce Clause doctrine that says "Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce." Transcript (PDF) at 43. Verrilli proceeds to give a 200+ word answer, which I will try to compress into something actually succinct. Actually, I can't, because he doesn't articulate limits, he only makes an assertion about what Congress can do. Congress may force individuals to buy a product "if it is necessary to counteract risks attributable" to "a comprehensive scheme it has the authority to enact," and

Congress can regulate the method of payment by imposing an insurance requirement in advance of the time [when] the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when -- when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.

Okay. Not succinct at all. And not responsive either. Can the SG state limiting principle? Obviously not.
2. Michael A. Carvin (representing the NFIB) argued that Congress didn't restrict its scheme to the people who actually affect commerce by consuming health care services and failing to pay for it. The regulated category, the uninsured, includes plenty of people who do pay their bills and who are not part of the problem. They are simply being swept in to collect the money to cover the costs of health care. Justice Kennedy — whose vote is crucial — says he agrees "that's what's happening here." Transcript at 104. Then he says, in what I think is his most revealing comment:

And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case.

It's all a matter of degree... proximate cause.... He's not buying the bright-line rules. He's getting intuitive about it. I don't think Carvin meets him in the place where, he's revealed, he's making his mind up.

3. Carvin says the government can't compel you to buy "5 gallons of meat." Gallons of meat! Of course not. It's too bizarre. Transcript at 93.

4. Justice Sotomayor seems to have been watching the news lately, because she refers to the "1 percent." (She's talking about the only people who can pay their own health care bills when something catastrophic happens.) Transcript at 22. She also manifests some of that "empathy" Obama said he wanted when he was choosing a Justice. She says:

[W]hat percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance — do you think there's a large percentage of the American population who would stand for the death of that child — if they had an allergic reaction and a simple shot would have saved the child?

Transcript at 98. People don't want children to die... therefore, Congress has the power.

5. Paul Clement, representing the states, argues that the "solution" Congress came up with goes way beyond the problem the SG identifies (which is that uninsured people will consume services that they won't pay for).

If all we were concerned about is the cost sharing that took place because of uncompensated care in emergency rooms, presumably we'd have before us a statute that only addressed emergency care and catastrophic insurance coverage. But it covers everything, soup to nuts, and all sorts of other things.

Transcript at 74-75. Soup to nuts! Just slop that into my bucket of meat. You see the point though: There's an argument that it's sensible to characterize the uninsured as already in the market because of the costs that they represent and that they are now shifting onto the people who do pay for healthcare, but they're forced to buy insurance that covers much more than they are really at risk to consume. They're being swept in and exploited to get more money to spread around.

6. When the SG tries to argue that the penalty for failing to buy insurance is actually a tax (and thus within the Taxing Power), Justice Scalia says: "The President said it wasn't a tax, didn't he?" Transcript at 47. (The SG's answer was basically that it didn't matter.) Justice Ginsburg didn't seem to think it was a tax either: "A tax... is a revenue-raising device," but the purpose of the penalty is to get people to buy insurance, and if they do, there will be no revenue. Transcript at 48. (The SG said the tax code is full of provisions that push people to do things to avoid taxes.) Justice Kagan said the question is "whether the determined efforts of Congress not to refer to this as a tax make a difference."

I mean, you're suggesting we should just look to the practical operation. We shouldn't look at labels. And that seems right, except that here we have a case in which Congress determinedly said, this is not a tax, and the question is why should that be irrelevant?

Transcript at 49. The SG cites a few instances when members of Congress said they were relying on the Taxing Power, at which point the Chief Justice jumps on him: "Why didn't Congress call it a tax, then?" Transcript at 50. The SG admits that they must have thought it would be "more effective" to call it a "penalty."

7. Justice Breyer sounds genuinely angry when Carvin says Congress couldn't — if some terrible disease were "sweeping the country" — require everyone to get inoculated. He's all: "The Federal Government has no power, and if there's — okay, fine. Go ahead. Please turn to Justice Kagan." That felt kind of talk to the hand. Carvin soldiers on, saying it's a local matter. The states would have the power, but not Congress. Then Alito helps Carvin out:

In [Justice Breyer's] hypothetical the harm to other people from the communicable disease is the result of the disease. It is not the result of something that the government has done, whereas here the reason why there is cost- shifting is because the government has mandated that. It has required hospitals to provide emergency treatment and, instead of paying for that through a tax which would be born by everybody,it has required -- it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.

There you have it. Quite pithy. There's a difference between the work of the government and a terrible disease. Transcript at 86-88.

8. If anyone thinks Justice Scalia, because of his concurring opinion in Raich, was susceptible to an argument based on the Necessary and Proper Clause, they should read pages 26 to 29 of the transcript.

The argument here is that this also is -- may be necessary, but it's not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left?

Scalia rejects the SG's answer pointing to those cases that deal with commandeering the states. Scalia wants recognition of the principle of enumerated powers. The SG says Congress isn't "invading the state sphere" because the market in health insurance is so huge. Scalia professed not to understand, then schooled him on the 10th Amendment, which "says the powers not given to the federal government are reserved not just to the States, but too the States and the people." The SG fell back on the generic doctrinal formula — "Congress is regulating economic activity with a substantial effect on interstate commerce" — and uttered the lame phrase "I would submit with all due respect" followed by the last-ditch assertion that any deeper analysis would be to "embark" on "Lochner-style substantive due process" (i.e., would involve the Court in the inappropriate reassessment of legislative judgments). That is, the SG never engaged with Scalia over limited, enumerated powers.

9. Justice Alito corners the SG in this exchange:

JUSTICE ALITO: Are you denying this? If you took the group of people who are subject to the mandate and you calculated the amount of health care services this whole group would consume and figured out the cost of an insurance policy to cover the services that group would consume, the cost of that policy would be much, much less than the kind of policy that these people are now going to be required to purchase under the Affordable Care Act?

GENERAL VERRILLI: Well, while they are young and healthy, that would be true. But they are not going to be young and healthy forever. They are going to be on the other side of that actuarial equation at some point. And of course, you don't know which among that group is the person who's going to be hit by the bus or get the definitive diagnosis. And that -­

JUSTICE ALITO: The point is -- no, you take into account that some people in that group are going to be hit by a bus, some people in that group are going to unexpectedly contract or be diagnosed with a disease that -- that is very expensive to treat. But if you take their costs and you calculate that, that's a lot less than the amount that they are going to be required to pay. So that you can't just justify this on the basis of their trying to shift their costs off to other people, can you?

GENERAL VERRILLI: Well, no, the people in that class get benefits, too, Justice Alito. They get the guaranteed-issue benefit that they would not otherwise have, which is an enormously valuable benefit. And in terms of the -- the subsidy rationale, I don't think -- I think it's -- it would be unusual to say that it's an illegitimate exercise of the commerce power for some people to subsidize others.

There you have it. You can see whom the government has chosen to exploit. The young, the healthy must pay for far more than the costs they are accused of shifting to others.

10. Justice Ginsburg finds it "very strange" that the government can't adopt an approach that tries to "preserve a role for the private sector, for the private insurers" but it can "can take over the whole thing." Transcript at 90. Justice Kennedy, back at page 25, puzzling over the Taxing Power, had "assume[d] that [Congress] could use the tax power to raise revenue and to just have a national health service, single payer." If it can do something so drastic, why can't it do something more moderate? Why force the government, if it wants to solve this problem, to do it in a more draconian manner? (You see this is what sparks my conspiracy theory: Perhaps Obama et al. would prefer to lose this case and be told the only path forward is single payer.)

Oh come on. That answer by Verrilli (no. 1) is succinct. It is certainly more succinct than needing to require young people to have insurance right now because eventually they will not be young, such that, say 40 years from now, they might need health care. p.34

So of course you can require a healthy 20-year-old to pay 40 years worth of premiums on the chance that he might need to go to the hospital when he is 60.

I am confused. Did the Dems ever explicitly make the argument that this was about transfer payments? I don't remember ever hearing this before. What they are now saying, if I am hearing this correctly, is that this is about taking from the healthy and giving to the ill. So, are they now admitting they're setting up a 2nd social security system that will be a victim to demographic trends?

Here is one exchange I didn't notice earlier today (OK, so I got tired and quit about 3/4 of the way through this afternoon) --

JUSTICE BREYER: Now we -- now you've changed the ground of argument, which I accept as -- as totally legitimate. And then the question is when you are born and you don't have insurance and you will in fact get sick and you will in fact impose costs, have you perhaps involuntarily -- perhaps simply because you are a human being -- entered this particular market, which is a market for health care?MR. CARVIN: If being born is entering the market, then I can't think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. thought that's what distinguished the plenary police power from the very limited commerce power. . . .JUSTICE BREYER: I see the point. You can go back to, go back to Justice Kagan.pp. 89-90

Is the example he (Breyer) gave and the answer given enough for Breyer to say, "oh, yeah, maybe this is too broad a claim of power"?

Carvin says the government can't compel you to buy "5 gallons of meat." Gallons of meat! Of course not. It's too bizarre.

Don't leave out the line after that -- MR. CARVIN: that doesn't suggest that the government compel you to buy five gallons of meat or five bushels of whilk because they are not regulating commerce.BRIAN: Five bushels of what?MR. CARVIN: of whilkBRIAN: Why are you putting so much emphasis on the H?MR. CARVIN: What are you talking about? I'm just saying whilk.

It is terribly disconcerting that the court has yet to touch upon in any meaningful way the distinction between the Medicare population (>65yrs) and the non-Medicate population (<65yrs), i.e., the bulk of the nation's health care costs are borne by Medicare, not the private or non-Medicare health care systems (although, to be fair, Medicaid is over-utilized, because it is subsidized).

This focus upon "one will need health care" is true - but it is mostly true once one is in Medicare, not while one is too young for Medicare. It is disingenuous for anyone to suggest, as part of defending the individual mandate, that all free-riders impose costs on the system - they simply do not. Some do, yes. But not all.

The reason for the individual mandate is, with a guaranteed issue requirement under the ACA, without the individual mandate, no one would buy health insurance until they needed to. That's the moral hazard of a guaranteed issue requirement without an individual mandate.

That the court does not address this in its questions to the respective counsels suggests to me they really do not know enough about health care, i.e., they (Kennedy) may fuck this up because, while they may understand the legal issues, they don't understand what it is the ACA is trying to do.

Scary.

And for all of you Obama voters out there, next time, pull your heads out of your asses. This thing, thanks to you all, is a disaster.

shifting onto the people who do pay for healthcare, but they're force to buy insurance that covers much more than they are really at risk to consume. They're being swept in and exploited to get more money to spread around.

EXACTLY

I have a catastrophic coverage policy.

I don't go to the doctor very often and when I do for minor things, I pay cash.

I don't need maternity care, birth control, don't take any medications ....all of those mandated coverges just make a policy more and MORE expensive and I neither need or want those things.

I only need coverage for a catastrophe. Something big that I can't pay for from savings or cash flow.

YET...under this Obamination of a plan, I am forced to buy things I don't want merely to subsidize everyone else.

Many people will just choose to pay the fine until they need coverage.

There's an argument that it's sensible to characterized the uninsured as already in the market because of the costs they represent and that they are now shifting onto the people who do pay for healthcare, but they're forced to buy insurance that covers much more than they are really at risk to consume.

Let's not conflate two separate things here, as the proponents have done.

Verrilli took great pains to distinguish the health insurance market from the health care market. p.4 But then he goes on to use them interchangeably and conflates them.

The uninsured, by definition, are NOT in the health insurance market. And they may not now be in the health care market, but supposedly because they will eventually be in the health care market, they can be forced against their will into the health insurance market.

[W]hat percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance — do you think there's a large percentage of the American population who would stand for the death of that child — if they had an allergic reaction and a simple shot would have saved the child?

This is such pure-grade bullshit. What does this have to do with the law? Besides which as noted above there isn't an emergency room in the country that would knowingly allow someone to die because they didn't have insurance to cover a shot that heals an allergic reaction.

Dickens was the King of Serialization. He started with Pickwick Papers in 1836 and published most of his novels in 20 episode serials. This gave him the widest possible audience, maximized cash flow and minimized publication expense and also suited his writing habits. He more or less invented the technique for long fiction, and it was adopted by other British Victorian writers.

Mark Twain wrote prolifically for magazines (and for everything else), but few of his best known novels were serialized. The original Tom Sawyer was not, nor was Huck Finn or Connecticut Yankee. Puddinhead Wilson and a later Tom Sawyer novel, Tom Sawyer Detective were serialized. By this time Twain was having financial trouble due to bad investments and quick cash was a motive in serializing these books, both of which are not among his best.

A lot of "histories" of Twain say he serialized and while this is technically true it was not his hallmark.

with a guaranteed issue requirement under the ACA, without the individual mandate, no one would buy health insurance until they needed to. . . . That the court does not address this in its questions to the respective

Scalia brings it up on page 37, Tim.

JUSTICE SCALIA: You could solve that problem (of costs increasing because people with pre-existing problems did not buy insurance until they needed care) by simply not requiring the insurance company to sell it to somebody who has a -- a condition that is going to require medical treatment, or at least not -- not require them to sell it to him at -- at a rate that he sells it to healthy people.But you don't want to do that.

GENERAL VERRILLI: But that seems to me to say, Justice Scalia, that Congress -- that's the problem here. And that seems to be --

The uninsured, by definition, are NOT in the health insurance market. And they may not now be in the health care market, but supposedly because they will eventually be in the health care market, they can be forced against their will into the health insurance market.

And having been uninsured for quite some time I can state there is no rule or guarantee that ALL uninsured people are shifiting costs to others.

Just because you are not insured doesn't mean that you are a deadbeat and shifting costs to everyone else. Young people for instance.

The difference is between the cost of CARE and the cost of INSURANCE. When you load the insurance policies up with every procedure known to man and with low or no deductibles, two things happen.

People will use the living shit out of their health care and the burden of providing the excess demand on doctors and hospitals will raise the cost of the care.

Does there need to be a limiting principle on the Commerce Clause? If the Congress can regulate wheat that you grow for yourself in the name of interstate commerce they can regulate whatever the heck they want.

Thanks, but I meant that the court did not address it in the context of the bifurcated "market" between Medicare and non-Medicare, i.e., the costs are sure to eventuate in Medicare, possibly outside of Medicare.

CHIEF JUSTICE ROBERTS: If I understand the law, the policies that you're requiring people to purchase involve -- must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment, substance use treatment or pediatric services, and yet that is part of what you require them to purchase. . . . But your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you're requiring people who are not -- never going to need pediatric or maternity services to participate in that market. p.31

Analyzing this as a game is all fine but is anybody here familiar with the plan Hillary proposed during primary 2008? Do you know what was in it? From Hillaryis44.org : Hillary Clinton proposed a mandate based on regional markets. Constitutional questions on the mandate could have easily been resolved, as Hillary proposed, with point of contact (meaning when you actually get sick and need health care) registration.

This is a sad day and such a monumental missed opportunity. I don't even want to hear from any of you jokes and cracks about her 90s Hillarycare.

Justice Ginsburg didn't seem to think it was a tax either: "A tax... is a revenue-raising device," but the purpose of the penalty is to get people to buy insurance, and if they do, there will be no revenue.

Yeah, exactly. Nobody is going to call it a tax. The only one who appears sympathetic to that argument is Kagan.

It's going to be a fight over the commerce clause. Which means 5-4, liberals lose.

This would be an expansion of the commerce clause. And the conservatives (including Kennedy) have zero interest in doing that.

If O'Connor was on the Court it would still be 5-4.

And the fact that the government is making a tax argument suggests they know the commerce clause argument is a loser.

"The uninsured, by definition, are NOT in the health insurance market. And they may not now be in the health care market, but supposedly because they will eventually be in the health care market, they can be forced against their will into the health insurance market."

Actually, this statement is factually false (or, if one prefers, incomplete, or misleading). Anyone who is employed in the US, with or without health care coverage, is in the health care market - a market for which they pay through their FICA withholdings, although they are (generally) ineligible from participating until they are 65.

This is a critical distinction because Medicare is 20% of the total national health expenditure (Medicaid is 15% of the total national health expenditure).

So what,? one says. It matters because per capita health care spending for those >65yrs is more than three times greater than health care spending per working-age person, i.e., the costs are heaviest per capita in Medicare, and Medicare is "paid" (as much as in insolvent, under-funded health care program can be "paid" for) by involuntary participants through FICA withholdings.

Actually, this statement is factually false (or, if one prefers, incomplete, or misleading). Anyone who is employed in the US, with or without health care coverage, is in the health care market

Actually, you still don't understand the difference between

Health Insurance and Health CARE

Medicare is an insurance program that you participate in IF you are working. If you are not working, you are not forced to pay Medicare Premiums. Unlike the Obama plan you are required to pay premiums no matter what.

If you didn't work and didn't pay the premiums, you can still participate in the insurance program by paying for Part A, which is free for those of us who paid the premiums. And pay for Part B just like everyone else.

Medicare is not a health CARE program it is an insurance program. Just like Social Security is an insurance program wherein we pay in premiums for an eventual annuity pay out.

Health Care is the product you receiver when you use your benefits under the INSURANCE program. If you don't use the benefits, you have not received CARE.

This really isn't that hard....

Health Care is the product you receive. When you have no insurance, you pay for it yourself. Or if you can't pay for it there are other programs out there, even welfare programs already subsidized by tax dollars to take care of the indigent and poor.

Tim nailed it. When all is said and done the ACA is really a vehicle to finance Medicare by using the insurance companies to subsidise Medicare by forcing the young to generate revenues to the carriers who then have to raise rates beyond what is actuarirly needed so the providers can bill them for the underpayment by Medicare. The congressional democrats knew they could not raise FICA taxes high enough so they came up with this scheme to lay off the balance billing on the policy holders. Same with the states with the Medicaid mandates. Its a gigantic fraud from the jump.

Medicare is participation [as a source of funds only] for anyone who works on the books for only a single day. But for those who die befiore age 65, they never participate in Medicare except as a funder.

I understand your conflation comment - and yes, I need to be more careful with terms (too late to subtract those glasses of wine...) - but my point stands: people are paying for the insurance for the medical services they are most likely to call upon through their FICA withholdings.

And yes - those not participating in the *private, voluntary* health insurance market, for whatever reason, are *NOT* in the health insurance market, but this does not necessarily mean that they are *affecting* the health insurance market.

The true question is, does congress have the power to compel me int a contract according the Urkelacare, yes or no? If they do have the power to compel me to by their insurance, then why can't acquire insurance on my own without their help? Also, if the individual mandate will in effect eliminate all health insurance companies because the government will be the primary, single paying insurer, then what vehicle do I have to opt out? Oh, there isn't one because I'm being compelled to by government health-care insurance whether I like it or not. And if i choose not to, I get taxed $2500 as a penalty, that congress isn't calling a tax. And if I choose not to pay that, well, then I go to jail. Some set of choices. And I ask again, how could any condition under this law for the mandate be constitutional?

vehicle to finance Medicare by using the insurance companies to subsidise Medicare by forcing the young to generate revenues

One BIG component of Medicare is MediCAID.

Medicaid is the welfare arm of Medicare and is a drain on the system because it has not been paid into and may never be paid into by the welfare recipients and illegal aliens.

If Medicare were not used as a piggy bank for the welfare and illegals, the program would be much better off.

Another reason that the States are suing over this bill is the HUGE mandates from the Federal Government on the States to increase their Medicaid/Welfare spending. The States can't afford it and it is an over reach from the Federal Government.

This is just a huge transfer of money from those of us who are still working to the welfare leeches who are sucking society dry. Not so much young versus old as it is the makers verus the takers.

Since Obama's party and his constituancy is the takers and he has already written off the makers.....it is just another way to buy votes and keep power.....at our expense.

When all is said and done the ACA is really a vehicle to finance Medicare by using the insurance companies to subsidise Medicare by forcing the young to generate revenues to the carriers who then have to raise rates beyond what is actuarirly needed so the providers can bill them for the underpayment by Medicare.

A few years of watching severely rationed end-of-life care should change young people's minds. They may volunteer to enroll in insurance. Maybe we need an event like the French had where all those older people died of heat stroke while the young and fabulous vacationed.

But, statistically, one has about a 78.4% chance (78,351 survivors of 100,000 born) of becoming Medicare eligible, ergo, almost 100% of the 78% of us who become Medicare eligible will use the medical services covered by Medicare insurance for which we paid through involuntary FICA withholdings.

One thing that annoys me, and I hope that the Court takes this into account, is that all of the constitutional issues are not technically before it, and all of the interested parties are not technically before it.

More specifically, the matter of the fundamental personal liberties of the individual (e.g. due process and equal protection) are not at issue and not being argued.

And none of the lawyers represent everyday ordinary people. Clement represents the states and this Carvin guy represents insurance companies. There is NO ONE up there arguing for those most impacted by the individual mandate -- the individual person.

Kennedy does seem to have some of the personal liberty issues on his mind though, and Scalia did mention "the people" under the 10th Amendment, and the words "due process" do pop up now and then in the transcript.

So maybe, even though the cases are technically limited to the Commerce Clause and Tax Clause, the Court will still give full consideration to all of the relevant issues, rather than waiting for some individual who has standing to bring a new and by then ripe lawsuit formally raising the personal liberty issues.

You see this is what sparks my conspiracy theory: Perhaps Obama et al. would prefer to lose this case and be told the only path forward is single payer.

OK, dumb question. It would appear that outcome is only viable if the Demos retain their uber-majorities in both Houses, because, without them and given the way people feel, we won't be going anywhere near this sort of legislation for a very long time.

Or am I missing something?

I heard them talking about severability on Greta and the very real possibility that, if the mandate is shot down, the rest of the rotten edifice would come down with it.

Transcript at 49. The SG cites a few instances when members of Congress said they were relying on the Taxing Power, at which point the Chief Justice jumps on him: "Why didn't Congress call it a tax, then?" Transcript at 50. The SG admits that they must have thought it would be "more effective" to call it a "penalty."

DBQ:I never said nor suggested Medicare was free- I was refuting Tim's claim that everyone participates in Medicare. And he just admitted that only 78% use Medicare by reaching age 65 or becoming disabled.

And think about that 22% never use medicare benefits - they paid into Medicare but never got a dime out!

the very real possibility that, if the mandate is shot down, the rest of the rotten edifice would come down with it

Although tomorrow I'm sure he'll be arguing the exact opposite of what he argued today (just as he argued today the opposite of what he argued yesterday on the tax question), Verrilli did seem to indicate today that the mandate is essential to the whole structure and if it falls, the whole thing crashes.

GENERAL VERRILLI: So, let me try to state it this way: The Congress enacted reforms of the insurance market, the guaranteed-issue and community-rating reforms. . . . The minimum coverage provision is necessary to carry those provisions into execution, because without them, without those provisions, without minimum coverage, guaranteed issue and community rating will, as the experience in the States showed, make matters worse, not better. There will be fewer people covered; it will cost more. pp.22-23

"without minimum coverage, guaranteed issue and community rating will . . . make matters worse" -- that is an argument for nonseverability, that the whole thing must fall if the mandate falls.

Hmmm, I know why you say that, and although they're both run by CMS, they're (completely) different programs.

However, both are bankrupting the nation, too, albeit for different reasons.

When Garage Mahal parrots the idiot line "Medicare for all," what he's too dimwitted to think through is that such a system is far, far more likely to be "Medicaid for all," for obvious reasons (well, obvious to anyone who can think through this).

"I was refuting Tim's claim that everyone participates in Medicare. And he just admitted that only 78% use Medicare by reaching age 65 or becoming disabled."

I didn't read it as a refutation as much as not entirely taking my point (and did you catch were I corrected myself, that 86.5% of women hit 66yrs?) - that even those employed by uninsured are still paying for the insurance they are most likely to use (a 75& chance for men, and an 86% chance for women) they'll most likely use.

Maybe I'm not being clear, or the point is clearer in my head than I can write, but all I'm trying to say is, the argument that the uninsured aren't participating in the insurance market is only true if one takes one forced contributions through FICA to the Medicare system off the table."

The government already forces all employees to participate in that health care insurance market, like it or not.

That is all.

Whether or not one collects is an entirely different issue, separate from my discussion here.

Althouse -- The problem with your conspiracy theory is that Obama and the Democrats don't have the votes and won't have the votes, ever, to pull off single-payer. If the stars weren't aligned in 2009, they won't be in our respective lifetimes (which will be long and bounteous).

I do get the sense, though, that the Court would like to do something modest. Thus, my proposal: it's a tax, and Congress can tax, even if it chooses not to say it is taxing.

Finally, nothing -- nothing -- has worked out for Obama. He couldn't even get a dead cat bounce for ostensibly killing Osama Bin Laden. What makes you think he could pull off such a conniving thing? Certainly not his record.

I listened to this today and I couldn't help but have this horrified feeling that our government was arguing to justify a marxist state where we are told what we must do and how much we must pay for it. Soon, they will be arguing that we must have jobs that they approve of and next we'll be like Stalinist Russia.

The Justices also kept accepting the premise that emergency services are the big expense, when the bigger expenses are not emergency care, it is the chronic care.

Regarding the government's failure (refusal) to provide any kind of "limiting principle" or boundary line in any of its arguments (No. 1), I wonder if some of the more recents cases the Administration has argued will come back to bite them in the ass.

Specifically, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, and Sackett v. EPA, where in both cases the Administration took the position that the government has absolute and supreme power and the Court smacked them down hard.

Justices might not look too kindly on the Administration claiming once again to have absolute power here.

Skyler -- There is nothing Marxist about the government mandating that you have health insurance. The problem is that the federal government does not have plenary power -- as states do -- to make such a law.

On a more general note, I see too many conservatives and libertarians making these cornpone statements about Obama being a Marxist. Obama is no Marxist; he is a statist leftist with boring ideas. You do yourselves no favors when you make these statements. You sound like the childish Bush haters calling Bush a war criminal and whatever for eight years. Get over yourselves.

7 single payer is even dumber than this bill. For it to work there can be no other method of payment, no fee for service, only through the government payment scheme. Once you get there then it becomes single provider and no one has made any plausible rational that gives the government the to nationalize an existing industry.

Besides under such a scheme can you imagine the nightmare for the democrats when the providers go on strike for pay, benefits and retirement compensation.

DBQ Medicare and Medicaid are now dependant on cost shifting to private pay to offset the government's inability to finance both schemes. If there is a conspiracy its the cost shifting off the government's balance sheet unto private payers. I am surprised that argument hasn't been made by the opposing counsel.

For Christsakes, you are splitting hairs with Skyler. Pardon us for being so imprecise in selecting negative adjectives to describe a failed presidency. And you have been on your high horse lecturing all who dare to toss out an opinion here. Take the stick out of your butt- and re-locate your smart but humorous side- it suits you better.

AJ -- I read too many story and blog comments. It has gotten to me, really. What happens is you will see some story -- typhoon is Asia, cat stuck in tree -- and there will be some commenter early on saying that Obama is a communist, or an illegal alien, or some such.

It's tiresome. I want to fight Obama because his policies are trite and unworkable, because that's all they are. The man is not up to the presidency in experience or imagination or political will. But he's not evil.

I decided to make my stand here, with Skyler, who I can't stand not least because he advocated in these forums the random killing of Afghan civilians -- innocent women and children. I'll never forget that thread. That, my esteemed friend, is evil. That right there.

Bob -- The government mandating that you have health insurance is not single-payer.

A situation where people are taxed to pay for everybody's unpaid emergency room visits and the possibility of long-term chronic care is not the worst thing in the world. I can live with it, though I certainly don't support it. The important thing that a federal scheme to make people buy something is not in and of itself constitutional.

In Lenin’s writing, this was not so much directed at lazy or unproductive workers,[4][5] but rather the bourgeoisie. (Marxist theory defines the bourgeoisie as the group of those who buy the labor-power of workers and engage it in the process of production, deriving profits from the surplus value thus expropriated. Once communism was realised, that is, after the abolition of property and the law of value, no-one would live off the labor of others.[6])

"If it can do something so drastic, why can't it do something more moderate? Why force the government, if it wants to solve this problem, to do it in a more draconian manner?"

But, of course, the problem arises if the "more moderate" approach uses a power that the Constitution does not grant Congress. I don't think the Constitution grants an extra power to Congress that says "Congress can do anything it wants if it's popular or helps them get reelected or some people view it as convenient."

"The problem with your conspiracy theory is that Obama and the Democrats don't have the votes and won't have the votes, ever, to pull off single-payer."

The severablity argument tomorrow can give them an opening, oddly enough. If the justices shoot the individual mandate in the head but leave the rest of the law standing the private insurance industry would be destroyed by the unaltered remains of the law. If the Democrats are suicidal enough to kill the insurance industry they could leave single payer as the only option standing.

I admit it's a long shot, but with severability the only options are private insurance death or some kind of legislative movement to repeal the remnant, and in Washington today it's very hard to move anything. In effect the Democrats have to be willing to shoot the private insurance industry hostage.

Why are they even talking about insuring the young when everyone will just pay the fine and use the "no pre-existing condition" clause to get "insurance" after they become ill?

Everyone in the court is acting like this thing was meant to work rather than bankrupt the insurance companies and lead to single payer.

In short, if the state makes a free rider argument then the opponents have a MUCH more powerful version of that same argument to make because the entire country will be incentivized to be free riders under the government's plan.

If you are going to do great violence to the Constitution then surely it must be for some cause greater than creating more deadbeats. Pointing this out may help a weak minded justice like Kennedy feel he is doing the right thing in striking down the law though it should be irrelevant to the question of whether the mandate is Constitutional.

Ernst -- I do not understand this argument that the health insurance industry will implode. It won't. It's not an insurance industry, anyway, it's an industry in which groups of people pay lump sums for a certain set of as-needed or frequently as-desired health-related services. Will those lump sums be so substantially lower than the costs of services in the next 300 or so days that the industry will cease to exist?

No, and it's foolish to make such arguments. The industry will not disappear and Congress can craft new law whenever it likes.

Why is everything a fucking crisis? It's not. And there is no endgame. Law in the United States is fluid.

Seven, if it quacks like a Marxist and claims that all his philosophical influences were Marxists and he associates with Marxists and acts in every way like a part of the Comintern then he's a Marxist.

But what I was referring to was the arguments of the government to grasp more and more control over us with nothing but a worker's paradise of free things as a justification. The arguments put forward by the government could have come from a Marxist dialectics primer. We used to be a free people. The government no longer even pretends we are.

I don't recall advocating killing random afghan civilians. I only meant to specifically target them. Just like we did in WWII. A people are responsible for the government they allow to rule them and our current ideology of absolving the citizens of any consequences for their government's actions, indeed our policy of rewarding them because of those actions does nothing to discourage more attacks on us. But that's another discussion.

"I do not understand this argument that the health insurance industry will implode. It won't."

The rest of the law compels them to accept sick customers and to not charge higher premiums based on a customer's health, age or gender. Without the younger, healthier, lower cost customers being forced to offset the increased costs the insurers will lose money and die, or exit the market.

7 the mandate in of itself is not single payer: agreed. Where we differ is when the must provide benefits and the cost shifting become so great thatt the companies are no longer able to exist then it becomes single payer. And for single payer to work it can only work if the government is the sole payer. At the point two issues occur: 1 in addition to being forced to purchase something today that you don't need because you may need in the future you have the issue of being precluded from engaging in otherwise legal commerce because you can't engage in fee for service.2- that means you can't use the money in your pocket which has written on it good for all debts public and private for medical care eventhough its good for every other form of legal commerce.

Even if the above were to pass muster then single payer becomes single provider hence nationalizing an existing industry. How can that possibly pass muster?

Both the providers and the insurance companies would have the mother of all takings clause case. In addition the doctors and nurses would become involuntary defacto government employees. I do not see how doctors and nurses can be compelled to work solely as defacto government workers or dejure government workers. That would be another horrendous constitutional issue.

The democrats tried to be too clever by half using the ACA to forcibly use the privately insured to cover the funding shortfall of Medicare and Medicaid. They simply failed to muster the political courage to simply expand Medicaid and fund it through the general fund or payroll tax using the proper taxing power the congress clearly has. They simply do not have the political guts to honestly stand by their convictions hence this disaster of a bill and power grab.

Aside from the individual mandate there is the issue of the new Medicaid mandate on the States. What is the outer limit on the sovereignity of the States if that mandate is constitutional? Do the States cease being co-sovereigns and become administrative sub-divisions of the federal government?

It would an irony of epic proportion if the federal government, a creation of the states were to become sole sovereign over its creators.

The democrats simply do not have the common political sense and intelligence that major undertakings like the expanded health coverage scheme can only be done in good economic times. They are too clever-by-half andvit appears this will blow up in their face.

The rest of the law compels them to accept sick customers and to not charge higher premiums based on a customer's health, age or gender. Without the younger, healthier, lower cost customers being forced to offset the increased costs the insurers will lose money and die, or exit the market.

1. There is no severability clause.

2. The case will be remanded to lower courts, which means time will pass before anything happens.

3. Congress will act.

4. The insurers will file lawsuits, and courts will stay these new insured customers from signing up.

As I say, it's not a crisis. Very, very little is, and virtually nothing in domestic politics.

There is nothing Marxist about the government mandating that you have health insurance.

Nope, the proper word you're looking for is fascist.. People always focus on the jackboots, but the economic template of fascism is the government co-opting private industry and vice-versa. What else can you call a law that forces you to sign a contract with a private business? "If you do not, there vill be penalties!" Oh my.

*****

"I'm in for armed robbery, what about you?"

"I didn't pay my health care penalty."

*****

Regarding the notion that single payer would be constitutional whereas a mandate is not, why is that strange? We already have Medicare and Social Security--single payer would be no more problematic.

The problem with single payer isn't constitutional, but political. The Democrats know full well there isn't close to enough support for it. ACA barely passed with a Democratic "perfect storm" of 60 Senate seats, the House, and the WH. When are we going to see that again?

Blue -- Your definition of fascism includes all colleges and universities (except Hillsdale and Grove City), Lockheed Martin and all other military manufacturers, all car companies, all energy companies, the media producers who take tax breaks to work in certain locations, and, in fact, every lobbyist and lobbying organization in the country.

You also don't understand fascism. That's okay. It's hard to understand. It's a style more than anything else, and a spiritualized nationalism.

7 agreed this is no real crises like 9/11 or December 7th. Its an artificial crises created by the democrats for no good reason. On the other hand The Whiskey Rebellion wasn't a crises like that of a war yet President Washington called out the Army to put down a tax revolt.

As for MA, first its too early to tell if it becomes a single payer system and I do not know if that law has provisions for the companies to cap their losses and hence avoid insolvency, presumably it does. Besides states have powers that the federal government does not have.

As for the federalism issue up to now no state has challenged Medicaid imposed mandates but that is not to say that this bill if upheld and in these hard times won't provoke that issue. Another federal issue is as of now each state has the authority to regulate the companies, require what they must minimally provide so if this bill is deemed constitutional the federal government is now the regulator and not the states, something new and up to now outside of the federal regulatory scheme.

Medical insurance is not a prepaid medical services scheme. Having negotiated health policies for my business the policies like any other insurance policy they have moral hazard and adverse selection components, they also have specific coverages, specific exclusions, and limitations and maximum payout caps.

The real problem with single payer is practical. The government can't handle it. They already know they can't make a budget or run the VA or manage entitlements. How in the world could they set themselves up to tax and pay for the entire US health system? It's not like they could hide the bad results when thinks went awry. They couldn't possibly tax enough to pay for it. It would be a gigantic mess and they know it.

7 in closing there is a fundemental contract law issue of forcing parties to enter contracts under duress, the companies with the must issue and no exclusions and the insured with the must carry issue.

Severability is the issue being discussed today/tomorrow, so it's premature to say how they'll come down on that issue.

I'm not convinced congress can be forced to act. For example even if the Republicans take the White House and make big gains in the senate during the next election, will they hit the magic filibuster limit of 60+? The Democrats only have to block action, not initiate new action, in order to extract significant concessions from the opposition.

The Democrats only have to block action, not initiate new action, in order to extract significant concessions from the opposition.

And bully for them. That, my friend, is what we call politics in a democratic society with representative government.

I think everyone needs to chill out. You can rest assured that if Blue Cross Blue Shield comes anywhere near teetering upon teetering upon the road next to the road to bankruptcy, 60 senators will quickly come to terms.

Your definition of fascism includes all colleges and universities (except Hillsdale and Grove City), Lockheed Martin and all other military manufacturers, all car companies, all energy companies, the media producers who take tax breaks to work in certain locations, and, in fact, every lobbyist and lobbying organization in the country.

No, it is one thing for private interests to try to influence government to their advantage-- that is entirely expected in a democratic system-- and another thing entirely when the government co-opts private industries for its own political machinations ("For the State/People!"). Notice that it's done at the expense of individuals' freedom. I don't recall the government requiring me to buy a car or even electricity.

You also don't understand fascism. That's okay. It's hard to understand. It's a style more than anything else, and a spiritualized nationalism.

No, you're just another self-satisfied fool who thinks fascism is just natty uniforms and ugly barking.

"I just realized something -- awfully late in the game -- but there has been no argument or dispute whatsoever over whether the states have standing to assert these claims."

I was under the impression that much of the debate yesterday over if it is a tax or not was really about just this matter, since suits over penalties can be made before they are incurred, but suits over taxes cannot.

Massachusetts has the highest premiums in the nation...so the insurance companies aren't hurting.

But MA also has one of the highest outflows of young people in the nation. The young and healthy are leaving for cheaper pastures, leaving the older folks who are more likely to use health care services. There's a death spiral starting to form, for sure.

The CONSPIRACY is REAL--Robert Reich revealed the talking points a day early, on Monday evening, with: "But with a bit of political jujitsu, the president could turn any such defeat into a victory for a single-payer healthcare system -- Medicare for all." http://www.huffingtonpost.com/robert-reich/single-payer-health-care_b_1381382.html

I thought the shading of the term tax or penalty was necessary to get the bill out of the Senate via reconciliation. Once Scott Brown was elected, the Dems only had 59 seats instead of the requisite 60.

Reconciliation was only viable if the tax raised significant revenue, which as Ginsburg pointed out, this one does not; hence the 'penalty' appellation. The bill was also only viable if it didn't add to the deficit, hence the 2014 start date and the deceptive OMB price tag.

If SCOTUS deems it a tax, I wish there were some form of recourse whereby the reconciliation passage could be re-examined based on what the Senate said at the time and what the bill has shaken out to actually be.

Justice Sotomayor seems to have been watching the news lately, because she refers to the "1 percent." (She's talking about the only people who can pay their own health care bills when something catastrophic happens.) Transcript at 22. She also manifests some of that "empathy" Obama said he wanted when he was choosing a Justice. She says:

[W]hat percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance — do you think there's a large percentage of the American population who would stand for the death of that child — if they had an allergic reaction and a simple shot would have saved the child?Transcript at 98. People don't want children to die... therefore, Congress has the power.

With one question, Soto succintly and conclusively establishes that she is unfit to be a S Ct. Justice.

Actually, Medicare is not insurance at all. It is a government welfare program financed by a payroll tax.

Actually, Medicare WAS an insurance program until it became a giant piggy bank for welfare give aways.

The original intent, just like every other well meaning liberal program, has been perverted and whored out.

If the entire Obamacare abomination is not struck down, insurance companies will be forced by ADVERSE SELECTION and MORAL HAZARD (look the terms up) to raise their rates to unsustainable levels or more likely go bankrupt.

This....the bankruptcy of the insurance industry....was the original intention.

Fundamentally changing the face of America...one industry at a time. Coal. Oil. Banking. Auto. All either going out of business or fundamentally changed.

And YES....it is the classic definition of Fascism.

A system of government marked by centralization of authority under a dictator, stringent socioeconomic controls, suppression of the opposition through terror and censorship, and typically a policy of belligerent nationalism and racism

Except for the nationalism, because liberals and Obama don't like the US and "fundamentally" want change.....we are 95% there.

I did not believe Prof. Althouse's theory about the SG intentionally throwing this case ... until the SG showed up without a response to the question of what limiting principle to the commerce clause would allow the mandate.

Its the obvious question. He had no succinct answer. He wants to lose the mandate at least.

First, the question at the heart of the matter is if non-participation can be regulated as part of "commerce".

Secondly...and this is probably from the stupid question file...if all health insurance rules require you to purchase insurance from a vendor within your state's boundaries, how is health insurance "interstate" commerce?

36 -- I have had these types of discussions with you before. You are either dense or very poorly read. Try -- just try -- to read any of one of the hundreds of cases on the issue before you ask inane questions.

The issue is what is commerce. Is it commerce when you do not buy or sell something? Clearly, it is not, because commerce means buying or selling things. And so, whatever commerce power Congress has is useless because there is no commerce when someone neither buys nor sells.

As I have said, the intelligent and correct argument is that this is a tax because it can be construed as a tax and Congress can tax all it wants.

My understanding of the issue is that those who do not have insurance are involved in buying healthcare. They are simply transferring the payment of those services to others in the market, i.e., those who have insurance.

“ Secondly...and this is probably from the stupid question file...if all health insurance rules require you to purchase insurance from a vendor within your state's boundaries, how is health insurance "interstate" commerce?”